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National Redress Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last Resort and Other Measures) Bill 2021

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2019-2020-2021

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE AMENDMENT (FUNDERS OF LAST RESORT AND OTHER MEASURES) BILL 2021

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 (Circulated by the authority of the

Minister for Families and Social Services, Senator the Hon Anne Ruston)



NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE AMENDMENT (FUNDERS OF LAST RESORT AND OTHER MEASURES)

BILL 2021

 

 

OUTLINE

 

The National Redress Scheme for Institutional Child Sexual Abuse Amendment (Funders of last Resort and Other Measures) Bill 2021 ( the Bill ) amends the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 ( the Act ). The Bill proposes to modify various aspects of the National Redress Scheme for Institutional Child Sexual Abuse ( the Scheme ) to increase access to the Scheme for survivors of institutional child sexual abuse and to support effective administration. The Bill is a further response to the independent two-year review of the Scheme that was conducted in accordance with section 192 of the Act.

 

Funders of last resort

 

The funder of last resort arrangements in the Act will be extended to encompass non-defunct institutions that are unable to participate in the Scheme, and defunct institutions with which participating jurisdictions do not share responsibility for abuse and there is no parent institution to take responsibility. 

 

Under the new arrangements, participating jurisdictions can agree to assume funder of last resort responsibility for individual institutions within these categories.  A defunct institution may be listed for both the existing funder of last resort arrangements and the expanded arrangements. Institutions may also be listed for multiple participating jurisdictions.  As with existing provisions, for a jurisdiction to be a funder of last resort for an institution the jurisdiction must agree to the arrangement and the Minister for Families and Social Services must declare the arrangement through a legislative instrument.  This provides a mechanism for applications naming institutions listed under the expanded funder of last resort arrangements to be progressed to determination, enabling affected survivors to have access to redress under the Scheme.  Institutions that can join the Scheme but choose not to are not covered by these arrangements.

 

In addition, the new arrangements will introduce the ability for certain institutions to partly-participate in the Scheme where the Minister for Families and Social Services has determined that they are unable to meet the requirements to fully participate in the Scheme.  This applies to institutions where there are reasonable grounds to expect that should they be declared as a participating institution, their obligations under the Act would not be discharged.  It is the choice of an institution as to whether they partly-participate in the Scheme.  

 

Where an institution is partly-participating, an assessment of their financial viability would be undertaken at least every 12 months.  This means that institutions that might, in future, become financially viable and able to meet the obligations of a participating institution, would not remain indefinitely listed for a participating jurisdiction under the funder of last resort arrangements.

 

In some circumstances, the Minister may otherwise declare an institution as a listed institution for a participating jurisdiction where a State or Territory agrees.

 

To support decision-makers make a determination on an application, a partly-participating institution will participate in the request for information process and provide the Scheme with information relating to an application to the Scheme and also provide a Direct Personal Response to those applicants that want one.

 

The new arrangements also allow jurisdictions to assume funder of last resort for an institution that the Minister for Families and Social Services determines is unable to meet the requirements to participate in the Scheme, and either cannot, or does not, agree to partly-participate.  These institutions may be considered as not joining the Scheme and may be at risk of losing their favourable taxation treatments and the ability to access future Commonwealth Government grant opportunities.

 

In agreeing to become a funder of last resort for an institution, a jurisdiction agrees to take on the institution’s financial liability. Non-defunct partly-participating institutions would not have financial liability for applications and therefore the release of liability would not apply.

 

Under the expanded funder of last resort arrangements, the Commonwealth will share the costs with the relevant funding jurisdiction(s) that is the funder of last resort for the institution responsible for the abuse.

 

Independent Decision Makers will determine the appropriate funder of last resort as part of their decision making.  Where an institution is listed for multiple jurisdictions, the relevant jurisdiction(s) as funder of last resort is determined based on where the abuse occurred and the connection with the abuse and operations of the institution in the jurisdiction.

 

As with the existing arrangement, the declarations for funder of last resort arrangements would remain a function of the Minister.  These powers would remain delegable to the Scheme Operator or a person who holds a delegated position for this function within the Department of Social Services.

 

 

Disclosing information about non participating institutions

 

The Bill provides the Scheme Operator with specific authority to disclose protected information about non-participating institutions who have been named in applications to the Scheme or which the Scheme has reasonable grounds to believe that the institution may be connected with the abuse of a person.  Protected information can be disclosed where those institutions have declined to join the Scheme, have not signified their intent to join, have signified an intent to join but are not yet participating, or do not meet the statutory requirements to participate in the Scheme.

 

Public naming of institutions enables survivors to be informed of an institution’s participation status and can help encourage institutions to join the Scheme, improving applicants’ ability to obtain redress.

 

The Bill further extends the Operator’s specific authority to disclose protected information about a non-government institution that is not a participating institution where that institution has been named in an application to the Scheme or where the Operator has reasonable grounds to believe that the institution may be connected with the abuse of a person.  A non-participating institution will be afforded a reasonable amount of time to join the Scheme before any disclosure of protected information related to their participation in the Scheme occurs.  

 

The Bill also provides the Operator with a number of grounds upon which to lawfully disclose protected information when publicly disclosing a non-participating or a partly participating institution. However, the Operator is not permitted to disclose protected information which would reveal the identity of a person who has applied for redress or the identity of a person about whom the Operator has reasonable grounds to believe may have been abused.

 

 

Financial impact statement

 

MEASURE

FINANCIAL IMPACT OVER THE FORWARD ESTIMATES

Funder of Last Resort

$22.8 million

Public Naming

Nil

 

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

The statement of compatibility with human rights appears at the end of this explanatory memorandum.



NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE AMENDMENT BILL 2021

 

 

 

NOTES ON CLAUSES

 

Abbreviations used in this explanatory memorandum

 

  • Act means National Redress Scheme for Institutional Child Sexual Abuse Act 2018 ;

 

  • Operator means National Redress Scheme Operator, as defined in section 6 of the Act;

 

  • Rules means the National Redress Scheme rules, made under section 179 of the Act;

 

  • Scheme means the National Redress Scheme for Institutional Child Sexual Abuse established by the Act.

 

 

Clause 1 sets out how the new Act is to be cited - that is, as the National Redress Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last Resort and Other Measures) Act 2021 .

 

Clause 2 provides a table setting out the commencement date of the whole of the Act. It provides that the whole of the Act will commence on the day after the Act receives Royal Assent.

 

Clause 3 provides that legislation that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule to the Act has effect according to its terms.

 

 



Schedule 1 - Amendments

 

 

Summary

 

The National Redress Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last Resort and Other Measures) Bill 2021 ( the Bill ) amends the Act to modify various aspects of the Scheme to provide better outcomes for survivors of institutional child sexual abuse, as a further response to the two-year review of the Scheme that was conducted in accordance with section 192 of the Act.

 

Background

 

 

Funders of last resort

 

The funder of last resort arrangements in the Act are extended to encompass non-defunct institutions that are unable to participate in the Scheme, and defunct institutions with which participating jurisdictions do not share responsibility for abuse.  Under the new arrangements, participating jurisdictions can agree to assume funder of last resort responsibility for these institutions, providing a mechanism for applications for redress to be progressed to determination where these institutions are named in applications as being responsible for abuse.  This measure is likely to improve applicants’ ability to obtain redress in relation to a significant cohort of institutions that are not currently participating in the Scheme.

 

 

Disclosing information about non participating institutions

 

The protected information provisions of the Act are amended to extend the authority for the Operator to publicly disclose certain information about institutions. This will allow the Scheme Operator to publicly disclose the participating status of institution(s) named applications, providing a stronger, clearer and administratively efficient basis for the current practice of publicly naming institutions.

 

Schedules 1 and  2 to  commence on the day after the Act receives Royal Assent.

 

Explanation of the changes

 

 

Schedule 1 - Funders of last resort

 

Main amendments

 

Items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 107, 107.

 

Item 1 inserts a new object into the section 3 of the Act to include that a survivor may receive a direct personal response from a partly participating institution.

 

Item 2 inserts the phrase ‘(and in certain circumstances, partly participating institutions)’ into the Simplified outline in section 4 of the Act to broaden the scope of institutions from which survivors of past institutional child sexual abuse may seek redress.

 

Item 3 inserts the phrase ‘(or certain other institutions)’ into the Simplified outline in section 4 of the Act to broaden the scope of institutions from which survivors of past institutional child sexual abuse may seek redress.

 

Item 4 substitutes the phrase ‘a participating institution is responsible’ for ‘an institution is responsible’ into the Simplified outline in section 4 of the Act.

 

Item 5 substitutes the phrase ‘where the participating’ for ‘where the’ into the Simplified outline in section 4 of the Act to broaden the scope of institutions from which survivors of past institutional child sexual abuse may seek redress. 

 

Item 6 inserts a new signpost definition into section 6 of the Act for eligible funding jurisdiction for an institution in relation to abuse. That expression is defined at new section 164D.

 

Item 7 repeals the phrase ‘a participating’ and substitutes ‘an’ into the definition of equally responsible in section 6 of the Act.

 

Item 8 repeals the definition of funder of last resort in section 6 of the Act and inserts a new definition by reference to new section 163 of the Act.

 

Item 9 repeals the definition of listed in section 6 of the Act and inserts new definitions by reference to new subsections 164(1), 164A(1), 164B(1) and 164C(1).

 

Item 10 repeals the phrase ‘subsections 108(2) and’ and substitute ‘section 108 and subsection’ into section 6 of the Act.

 

Item 11 inserts a new definition into section 6 of the Act for partly-participating institution , which means an institution that is listed under section 164B.

 

Items 12, 13 and 14 , repeals the phrase ‘a participating’ and substitutes the word ‘an’ to the definitions of primarily responsible , related and responsible in section 6 of the Act.

 

Item 15 repeals the word ‘an’ and substitutes the phrase ‘a participating’ to the definition of responsible institution section 6 of the Act.

 

Item 16 Inserts the phrase ‘(or, in certain circumstances, one or more institutions that are listed for a participating jurisdiction under section 164A, 164B or 164C)’ after the phrase ‘one or more participating institutions’ in section 11 of the Act.

 

Item 17 repeals and substitutes paragraph 13(1)(d).  New paragraph 13(1)(d) provides that a person is eligible for redress under the Scheme if, among other things, one or more of the following are responsible for the abuse (within the meaning of that expression at section 15):

·          a participating institution;

·          an institution that is listed for a participating jurisdiction under sections 164A, 164B or 164C (if a participating jurisdiction is an eligible funding jurisdiction for the institution in relation to the abuse).

 

Item 18 repeals ‘subsection 108(2)’ and substitutes ‘section 108’ in subsection 13(1) (note 2) of the Act.

 

Item 19 repeals and substitutes paragraph 16(1)(c).  New paragraph 16(1)(c) provides that the third component of redress is a direct personal response from:

·          each participating institution that is determined by the Operator under paragraph 29(2)(b) to be responsible for the abuse of the person, and

·          each of the partly-participating institutions that are determined by the Operator under paragraph 29(2)(j) to be responsible for the abuse of the person and for which the Operator determines under paragraph 29(2)(k) that a participating jurisdiction is a funder of last resort in relation to the abuse.

 

Item 20 inserts the phrase ‘or partly participating institutions’ after the phrase ‘participating institutions’ in subsection 16(3).

 

Item 21 inserts a requirement into the Simplified outline in section 18, that where an application for redress is approved, the Operator must also give written notice to any funders of last resort that are specified in the determination.

 

Item 22 repeals the word ‘participating’ from the heading in section 25.

 

Items, 23, 24 and 25 after each occurrence of the phrase ‘participating institutions’, the phrase ‘or partly participating institutions’ is inserted to paragraphs 25(1)(a) and (b), subsection 25(2) and paragraphs 26(2)(a) respectively.

 

Item 26 inserts the phrase ‘under section 164’ to the end of subparagraph 29(2)(i)(ii)

 

Item 27 inserts new paragraphs 29(2)(j), (k), (l) and (m) to describe additional matters the Operator must determine if the Operator considers there is a reasonable likelihood that a person is eligible for redress. 

 

New paragraph 29(2)(j) provides that the Operator must determine each of the following institutions that is responsible for the abuse (with a reference to section 15 of the Act): a defunct institution that is listed for a participating jurisdiction under section 164A and that the Operator does not determine is equally responsible with a participating government institution for the abuse; a party-participating institution (with a reference to section 164B); an institution that is listed for a participating jurisdiction under section 164C.  New paragraph 29(2)(k) provides that for each institution determined under paragraph 29(2)(j) that is responsible for the abuse of a person, the Operator must determine each participating jurisdiction that is an eligible funding jurisdiction for the institution in relation to the abuse (with a reference to section 164D), and that each of those eligible funding jurisdictions is a funder of last resort for the institution in relation to the abuse and therefore liable for providing redress to the person under the Scheme.

 

New paragraph 29(2)(l) provides that if the Operator determines that one or more funders of last resort are liable for providing redress under paragraph 29(2)(k), the Operator must determine, in accordance with section 165A, those funders of last resorts’ respective shares of the redress payment and counselling and psychological services component of redress for the person, and the Commonwealth’s share of the redress payment and counselling and psychological services component of redress for the person, whether or not the Commonwealth is determined to be a funder of last resort.

 

New paragraph 29(2)(m) provides that for each institution that was identified in the application, to which subparagraph 29(2)(j)(i), (ii) or (iii) applies, and is not covered by a determination under paragraph (j), the Operator must determine that the institution is not responsible for the abuse.  This ensures that where an institution is named in an application but is not determined to be responsible for the abuse of the person, the funder of last resort will not be liable for providing redress to the person under the scheme.  This aligns with current paragraph 29(2)(h) in relation to participating institutions.

 

Item 28 repeals and substitutes the legislative notes at subsection 29(2) to address the new funder of last resort arrangements and direct the reader to the relevant provisions in Part 6-2 of the Act.

 

Item 29 inserts the phrase ‘participating jurisdiction’ after the phrase ‘participating institution’ in paragraph 29(7)(b)’ to ensure the Operator provides a written notice to the relevant jurisdiction. 

 

Item 30 inserts reference to the new notice of determination to funders of last resort at 35A after the phrase ‘section 35’ into paragraph 29(7)(b).

 

Item 31 repeals reference to subsection 165(2) in subsection 30(5) (note 2) and inserts the phrase ‘section 165 or 165A’ to reference the special rules for funder of last resort cases or participating jurisdiction.

 

Item 32 repeals reference to subsection 165(3) in subsection 31(3) (note 2) and inserts the phrase ‘section 165 or 165A’ to reference the special rules for funder of last resort cases or participating jurisdiction.

 

Item 33 repeals the part of the heading ‘and participating institutions’ in Division 5 of Part 2-3 and inserts the phrase ‘participating institutions and funders of last resort’.

 

Item 34 inserts section 35A at the end of Division 5 of Part 2-3. Section 35A provides the Operator the framework within which they must issue a notice to the participating jurisdiction and what that notice must contain. This provision is analogous to existing section 35, except it relates to a notice of determination to funders of last resort.

 

Item 35 repeals ‘an institution’ from subsection 36(2).

 

Item 36 inserts ‘an institution’ before the phrase ‘is or is not’ in paragraph 36(2)(a).

 

Item 38 repeals and substitutes subsection 36(3) of the Act, which is about the effect of a determination.  New subsection 36(3) confirms that where an institution is responsible for abuse and liable for providing redress, or where a funder of last resort is liable to provide redress, this may result in the imposition of a civil liability on the institution or the funder of last resort to make payments under the Scheme in relation to that redress.

 

Item 39 repeals the following part in the Simplified outline in section 38: ‘If the person accepts the offer, the Operator must notify the participating institutions determined by the Operator to be responsible for the abuse of the person’s acceptance of the offer (including the components of redress that the person wishes to receive)’ and inserts the following part:

 

If the person accepts the offer, the Operator must notify the participating institutions determined by the Operator to be responsible for the abuse of the person’s acceptance of the offer (including the components of redress that the person wishes to receive). If the Operator has determined that one or more funders of last resort for one or more institutions are liable for providing redress, the Operator must also notify:

            (a)       those funders of last resort; and

            (b)       if any of those institutions are partly-participating institutions—those partly-participating institutions.

 

Item 40 inserts new paragraphs 39(ia) and (ib) providing for additional requirements as to the contents of an offer of redress.  The written offer of redress must also:

·          specify the institutions determined under paragraph 29(2)(j) to be responsible for the abuse,

·          specify the participating jurisdictions determined to be funders of last resort for those institutions, explain that those funders of last resort and the Commonwealth are liable for the institutions’ hypothetical shares of the costs of providing redress,

·          where an institution is defunct - explains that a direct personal response is not available to the person, and

·          for any institutions determined to be responsible for the abuse but for which the Operator determined there is no funder of last resort - explains that there is no funder of last resort for those institutions.

 

The written offer of redress must also specify the institutions that were identified in the person’s application but determined by the Operator not to be responsible for the abuse.

 

Item 41 inserts ‘(if any)’ after the phrase ‘responsible institutions’ at paragraph 39(p).

 

Item 42 inserts new section 41A into Division 2 of Part 2-4 of the Act. This is a new notice provision arising out of the new funder of last resort arrangements. Subsection 41A(1) provides that where the Operator gives an offer of redress and a participating jurisdiction has been determined to be a funder of last resort in new subparagraph 39(ia)(ii), but not the Commonwealth, the Operator must give the participating jurisdiction a written notice of the offer.

 

Subsection 41A(2) specifies that the written notice of offer must state the acceptance period for the offer and comply with any of the requirements prescribed by the rules.

 

Item 43 inserts the phrase ‘and partly participating institutions’ after the phrase ‘participating institutions’ in paragraph 42(2)(g) of the Act.

 

Item 44 inserts new section 44A. This is a new notice provision arising out of the new funder of last resort arrangements. New section 44A provides where a person accepts an offer of redress in accordance with section 42 of the Act, the Operator must give each applicable participating jurisdiction that had been previously notified under new section 41A written notice about the person’s acceptance of the offer and any matters prescribed by the rules, 

 

Item 45 inserts new sections 46A and 46B into Division 3 of Part 2-4 of the Act.  These are new notice requirements for funders of last resort and partly-participating institutions in relation to offers of redress.

 

Section 46A provides that the Operator must give a written notice to a funder of last resort if the institution was specified in the offer of redress and the person declines the offer. Subsection 46A(2) provides that the notice must also comply with any requirements prescribed by the rules.

 

Section 46B provides that the Operator must give a written notice to a partly-participating institution if a person accepted or declined an offer of redress in which the participating jurisdiction was specified as a funder of last resort for the partly-participating institution or institutions under subparagraph 39(ia)(ii).

 

Subsection 46B(2) provides that the notice must state that the Operator has determined that the institution was responsible for the abuse, the reasons for the determination, whether the person has accepted or declined the offer, and, if the person has accepted the offer, whether the person seeks a direct personal response from the institution. Subsection 46B(3) provides that the notice must also comply with any requirements prescribed by the rules.

 

Item 46 repeals the reference to ‘responsible institutions’ and to insert the phrase ‘participating institutions, and certain partly-participating institutions, that are responsible’ to section 47 of the Act.

 

Item 47 omits the word ‘participating’ from section 47 of the Act.

 

Items 48 and 49 insert the phrase ‘or partly participating institution’ after the phrase ‘participating institution’ in to both the heading of section 54 and subsection 54(1) of the Act.

 

Item 50 inserts reference to new section 46B of the Act.

 

Item 51 removes the reference to participating in subsection 54(2) of the Act.

 

Item 52 removes the reference to participating in subsection 54(3) of the Act.

 

Items 53 to 57 inserts references to partly participating institutions in subsections 56(1), 56(2), 56(3), 56(4), 56(5) and 56(7) of the Act.

   

Item 58 inserts new paragraphs 58(3)(d) and (e), which apply when a person has died before a determination is made on an application for redress.  Current subsection 58(2) provides that the Operator must continue to deal with the application as if the person had not died.  New paragraphs 58(3)(d) and (e) provide that, if the Operator approves the application, the Operator must also determine the institutions responsible for the abuse, the participating jurisdictions that are funders of last resort for those institutions, and the participating jurisdictions’ shares of the costs of the redress payment.

 

Item 59 repeals reference to ‘or a participating institution’ and substitutes the phrase ‘, a participating institution, a partly-participating institution or a funder of last resort’ to subsection 58(3) and 59(3) of the Act.

 

Item 60 repeals reference to ‘participating institutions’, and substitutes the phrase ‘institutions and funders of last resort’ in section 72 of the Act.

 

Items 61 and 62 repeals references to ‘participating institutions’, and substitutes the phrase ‘institutions and funders of last resort’ in the heading of section 79 and in subsection 79(1) of the Act.

 

Item 63 inserts reference to new notice of determination sections 35A or 46B to subsection 79(1) of the Act.

 

Items 64, 65, 66, 67, 68, 69, 73, 74 and 75 are consequential amendments to take into account the new funder of last resort arrangements. These amendments extend the protected information provisions, but only to the extent that they capture partly participating institutions to obtain, record, disclose or use protected information.

 

Item 70 inserts reference to ‘, or at least one institution listed for a participating jurisdiction under section 164A, 164B or 164C,’ to the Simplified outline in section 107 of the Act.

 

Item 71 repeals subsection 108(1) to account for the new funder of last resort, under which a person may be eligible for redress even where there is no participating institution responsible for the abuse.

 

Item 72 removes the redundant subsection number ‘(2)’.

 

Item 73 inserts a note at the end of subsection 108(2) of the Act to reference that a partly-participating institution is not a participating institution (see paragraph 164B(1)(b)).

 

Item 74 repeals the last paragraph in the Simplified outline in section 148 of the Act which provides ‘One or more participating government institutions may be a funder of last resort for a defunct institution. In that case, those government institutions will be liable to pay the defunct institution’s (hypothetical) share of the costs of providing redress to the person, which will increase the amount of funding contribution the government institutions will be liable to pay. (For the funder of last resort provisions, see Part 6-2.)’ and substitutes the following: ‘One or more participating government institutions or participating jurisdictions may be a funder of last resort for a non-government institution that is not fully participating in the scheme. In that case, those government institutions or jurisdictions will be liable to pay the non-government institution’s (hypothetical) share of the costs of providing redress to the person, which will increase the amount of funding contribution the government institutions or jurisdictions will be liable to pay. (For the funder of last resort provisions, see Part 6-2.)’

 

This substitution provides guidance in respect of liability for funding where one or more participating government institutions or participating jurisdictions may be a funder of last resort for a non-government institution that is not fully participating in the scheme.

 

Item 75 repeals and substitutes subsection 149(1).  The existing legislative notes are not repealed.  New subsection 149(1) is in similar terms to existing subsection 149(1) but also provides that each participating jurisdiction that is determined to be a funder of last resort for an institution that is determined by the Operator to be responsible for abuse of a person is liable to pay funding contribution for a quarter.

 

Item 76 repeals and replaces section 150 to provide that a participating institution’s funding contribution and a funder of last resort’s funding contribution for a quarter comprises both the redress element for the institution or the funder of last resort, and the scheme administration element for the institution or the funder of last resort.

 

Items 77 and 78 include reference to funder of last resort into section 151 and paragraphs 151 (a) and (b) of the Act.

 

Item 79 repeals the legislative note at section 151 and substitutes it with three notes.  Note 1 is in the same terms as the existing note.  Note 2 directs the reader to section 165 which is about a funder of last resort paying for a defunct institution’s hypothetical share of the costs of providing redress to the person.  Note 3 directs the reader to section 165A which is about the new funder of last resort arrangements.

 

Items 80 to 86 insert references to funder of last resort to existing provisions152(1) and (2), 153(1) and 153(1)(a), 153(2), 154(1), 154(3), 156(1), 157(1) and 157(6) of the Act.

 

Item 87 repeals and substitutes section 162 of the Act, the Simplified outline in relation to funders of last resort. The new Simplified outline explains the process where:

·          a participating government institution can be a funder of last resort for an institution where it is defunct, the government institution is equally responsible for the abuse and the defunct institution is listed for the jurisdiction that the government institution belongs to; and

·          a participating jurisdiction can become a funder of last resort for a non-government institution in relation to the abuse of a person where the institution is listed for the participating jurisdiction and the jurisdiction is an eligible funding jurisdiction in relation to the abuse.

 

A jurisdiction is an eligible funding jurisdiction in relation to the abuse of a person if the institution operated in the jurisdiction and the Operator considers it appropriate for the jurisdiction to be the funder of last resort given the jurisdiction in which the institution carried out its operations and the institutions responsibility for the abuse.   

 

New section 162 also explains that new section 164A is to be used when listing defunct institutions, new section 164B is used when listing institutions (partly participating institutions) that agree to provide a direct personal response if required, and that new section 164C is to be used for listing other institutions.

 

Item 88 inserts ‘(l)’ before the phrase ‘A participating’ in section 163 of the Act.

 

Item 89  inserts the phrase ‘under section 164’ at the end of the note in section 163 of the Act.

 

Item 90 inserts new subsection 163(2) into the Act to insert a second definition of funder of last resort .  It provides that a participating jurisdiction is a funder of last resort for an institution in relation to abuse of a person if a determination is in force under paragraph 29(2)(k).  Item 96 also inserts a legislative note to direct the reader to the requirement that the institution is also listed under section 164A, 164B or 164C.

 

Item 91 inserts ‘ —listing relating only to abuse for which participating government institution is equally responsible ’ at the end of the heading in section 164 of the Act.

 

Item 92 inserts the phrase ‘under this section’ after the phrase ‘a participating institution’ in subsection 164(1) of the Act.

 

Item 93 inserts a legislative note at subsection 164(1) to direct the reader to paragraph 29(2)(i).

 

Items 94 to 99 insert the phrase ‘under this section’ at the end of each of the following subsections: 164(2), 164(3), 164(4), 164(6), 164(7), and the following paragraphs: 164(6)(b) and 164(7)(b).

 

Item 100 inserts new sections 164A, 164B and 164C to establish the new funder of last resort arrangements.  These sections are in addition to existing funder of last resort arrangements in section 164 and an institution may be listed in more than one of these categories.

 

New section 164A is about listing defunct institutions for a participating jurisdiction where a government institution is not equally responsible for abuse of a person.  This builds on existing funder of last resort arrangements to also cover applications that name an institution that is defunct but a government was not equally responsible for the abuse.

 

Subsection 164A(1) provides that a defunct institution is listed for a participating jurisdiction if the institution is a non-government institution, it is not already a participating institution, and a declaration is in force under subsection 164A(2) that the institution is listed for the participating jurisdiction.  A legislative note at subsection 164A(1) clarifies that this section is relevant for the purposes of paragraphs 29(2)(j) to (m) of the Act which, unlike paragraph 29(2)(i), does not require a government institution to be equally responsible with the defunct institution for the abuse. 

 

Subsection 164A(2) confers a power on the Minister to declare that a defunct institution is listed for one of more participating jurisdictions under section 164A.  A legislative note clarifies that the institution may be identified by name, by class, or in any other way.  Subsection 164A(3) requires the Minister to be satisfied that the Commonwealth or a participating Territory has agreed (in the way prescribed by the rules, if any) to the listing before making a declaration under subsection 164A(2) in relation to that jurisdiction.  Subsection 164A(4) requires the Minister to be satisfied that a participating State has agreed (in a way provided by the State’s referral Act or adoption Act) to the listing before making a declaration under subsection 164A(2) in relation to that jurisdiction.  Subsection 164A(5) provides that the Minister may vary or revoke a declaration made under subsection 164A(2).

 

Subsections 164A(6) and (7) provide for the Commonwealth, a Territory or a State to withdraw their agreement to a listing (in a way prescribed by the rules, or in a way provided by the State’s referral Act or adoption Act, as the case may be).  If the Commonwealth, a Territory or a State withdraws its agreement, then the Minister must vary or revoke the declaration as soon as practicable so that the defunct institution is no longer listed for the jurisdiction under section 164A.

 

Section 164B provides for listing partly-participating institutions.  These are institutions that will have certain obligations imposed on them as they are not defunct. The obligations include providing information through the request for information process under section 25 and providing a direct personal response under section 54.  These obligations would ordinarily attach to participating institutions.

 

Subsection 164B(1) provides that an institution is listed for a participating jurisdiction under section 164B if the institution is a non-government institution, it is not a participating institution, it is not a defunct institution, and a declaration that the institution is listed for the participating jurisdiction is in force under subsection 164B(2). 

 

Legislative notes at subsection 164B(1) clarify that listing under section 164B is relevant for paragraphs 29(2)(j) to (m), and that a partly-participating institution can be required to provide a person with a direct personal response, unlike an institution listed under section 164C.

 

Subsection 164B(2) confers a power on the Minister to declare that  an institution (other than a defunct institution) is listed for one or more participating jurisdictions under section 164B.  A legislative note clarifies that the institution may be identified by name, by class, or in any other way.

 

Subsection 164B(3) requires the Minister to be satisfied that  the Commonwealth or a participating Territory has agreed (in the way prescribed by the rules, if any) to the listing before making a declaration under subsection 164B(2) in relation to that jurisdiction.  Subsection 164B(4) requires the Minister to be satisfied that a participating State has agreed (in a way provided by the State’s referral Act or adoption Act) to the listing before making a declaration under subsection 164B(2) in relation to that jurisdiction.  In both cases, the Minister must also be satisfied that the institution has agreed to being listed under the section, and that the institution would not be able to meet its liabilities under the Act and its obligations under section 54 (about providing a direct personal response) if the institution were declared to be a participating institution under subsection 115(2).  This provides the institution with the choice as to whether they partly-participate in the Scheme.

 

Subsection 164B(5) provides that the Minister may vary or revoke a declaration made under subsection 164B(2).

 

Subsections 164B(6) and (7) provide for the Commonwealth, a Territory or a State to withdraw their agreement to a listing (in a way prescribed by the rules, or in a way provided by the State’s referral Act or adoption Act, as the case may be).  If the Commonwealth, a Territory or a State withdraws its agreement, then the Minister must vary or revoke the declaration as soon as practicable so that the institution is no longer listed for the jurisdiction under section 164B.  The Minister must also vary or revoke the declaration as soon as practicable if the institution requests the Minister in writing to vary or revoke it so that the institution is no longer so listed, or if the Minister becomes satisfied that, if the institution were declared to be a participating institution under subsection 115(2) of the Act, its liabilities under the Act and its obligations under section 54 (about providing a direct personal response) would be discharged.

 

Subsection 164B(8) imposes a positive obligation on the Minister to consider, at least every 12 months, whether institutions listed under section 164B would be able to discharge their liabilities under the Act and their obligations under section 54 would be discharged if they were to be declared a participating institution under subsection 115(2).  This means that institutions that might, in future, become financially viable and able to meet the obligations of a participating institution, would not remain indefinitely listed for a participating jurisdiction under section 164B.  Institutions that can join the Scheme but choose not to may be at risk of losing any favourable taxation treatments and their ability to access future Commonwealth government grant opportunities.

 

Section 164C is about listing non-defunct institutions other than partly-participating institutions.  Subsection 164C(1) provides that an institution is listed for a participating jurisdiction under section 164C if the institution is a non-government institution, it is not a participating institution, it is not a defunct institution, and a declaration that the institution is listed for the participating jurisdiction is in force under subsection 164C(2).  Legislative notes at subsection 164C(1) clarify that listing under section 164C is relevant for paragraphs 29(2)(j) to (m), and that listing under section 164C does not make an institution a partly-participating institution.  An institution that is not a participating institution and not a partly-participating institution cannot be required to provide a person with a direct personal response.

 

Subsection 164C(2) confers a power on the Minister to declare that  an institution (other than a defunct institution) is listed for one of more participating jurisdictions under section 164C.  A legislative note clarifies that the institution may be identified by name, by class, or in any other way.

 

Subsection 164C(3) requires the Minister to be satisfied that  the Commonwealth or a participating Territory has agreed (in the way prescribed by the rules, if any) to the listing before making a declaration under subsection 164C(2) in relation to that jurisdiction.  Subsection 164C(4) requires the Minister to be satisfied that a participating State has agreed (in a way provided by the State’s referral Act or adoption Act) to the listing before making a declaration under subsection 164C(2) in relation to that jurisdiction.  In both cases, the Minister must also be satisfied that the institution would not be able to meet its liabilities under the Act and its obligations under section 54 (about providing a direct personal response) if the institution were declared to be a participating institution under subsection 115(2).

 

In both cases, the Minister must also be satisfied either that the institution has not agreed to be listed for the participating jurisdiction under section 164B, or the institution cannot be listed because of paragraphs 164B(3)(d) or 164B(4)(d) in that it would not be able to provide a direct personal response should it be listed under 164B. Finally, in both cases, the Minister must be satisfied there are exceptional circumstances justifying the institution being listed for the jurisdiction for this section 164C. The existence of exceptional circumstances will ensure that an institution should  become a partly-participating institution where practical and section 164C is only utilised where exceptional circumstances exists.

 

Subsection 164C(5) provides that the Minister may vary or revoke a declaration made under subsection 164C(2).

 

Subsections 164C(6) and (7) provide for the Commonwealth, a Territory or a State to withdraw their agreement to a listing (in a way prescribed by the rules, or in a way provided by the State’s referral Act or adoption Act, as the case may be).  If the Commonwealth, a Territory or a State withdraws its agreement, then the Minister must vary or revoke the declaration as soon as practicable so that the institution is no longer listed for the jurisdiction under section 164C.  The Minister must also vary or revoke the declaration as soon as practicable if the Minister becomes satisfied that: if the institution were declared to be a participating institution under subsection 115(2) of the Act, its liabilities under the Act and its obligations under section 54 (about providing a direct personal response) would be discharged; that the institution has agreed to be listed under section 164B and neither paragraph 164B(3)(d) nor 164B(4)(d) prevents the listing; or there are exceptional circumstances that no longer justify the institution being listed for the jurisdiction under this section 164C.

 

Subsection 164C(8) imposes a positive obligation on the Minister to consider, at least every 12 months, whether institutions listed under section 164C would be able to discharge their liabilities under the Act and their obligations under section 54 would be discharged if they were to be declared a participating institution under subsection 115(2).  This means that institutions that might, in future, become financially viable and able to meet the obligations of a participating institution, or institutions that choose to participate in the Scheme, would not remain indefinitely listed for a participating jurisdiction under section 164C.

 

Section 164D inserts a new definition of an eligible funding jurisdiction .

 

Subsection 164D(1) provides that the Commonwealth is an eligible funding jurisdiction for an institution in relation to abuse if the institution is listed for the Commonwealth under section 164A, 164B or 164C, and subsection 164D(2) or (3) applies.  Those subsections apply in the following circumstances:

·          subsection 164D(2) applies if the institution operated solely in a territory, the Australian Capital Territory or the Northern Territory pre self-government as mentioned in subsection 164D(4);

·          subsection 164D(3) applies if the institution did not operate solely in only one State, the Australian Capital Territory (ACT) or the Northern Territory (NT) when the abuse occurred, and the Operator or Independent Decision Maker considers it appropriate for the Commonwealth to be a funder of last resort, given the connection between the institution’s operations carried out in a place mentioned in subsection 164D(4) (a Territory, the Australian Capital Territory or the Northern Territory pre self-government) and the institution’s responsibility for the abuse.

 

Subsection 164D(4) provides that for the purposes of subsections 164D(2) and (3), the places are: inside a Territory other than the ACT and the NT, inside the ACT and the NT before they were self-governing, and outside Australia.

 

Subsection 164D(5) provides that a participating State or a participating Territory is an eligible funding jurisdiction for an institution in relation to abuse if the institution is listed for the State or Territory under section 164A, 164B or 164C and subsection 164D(6) or (7) applies.  Those subsections apply in the following circumstances:

·          subsection 164D(6) applies if the institution operated solely in the State or Territory when the abuse occurred; or

·          subsection 164D(7) applies if the institution did not operate solely in only one State, the ACT or the NT when the abuse occurred, and the Operator or Independent Decision Maker considers it appropriate for the State or Territory to be a funder of last resort, given the connection between the institution’s operations carried out in the State or Territory and the institution’s responsibility for the abuse.

 

Subsection 164D(8) further provides that the ACT and NT are not eligible funding jurisdictions for abuse that occurred before those Territories were self-governing.

 

Subsections 164D(9) and (10) provide that the rules may prescribe circumstances in which a participating jurisdiction is, or is not, an eligible funding jurisdiction for an institution in relation to abuse.  A legislative note at subsection 164D(10) reiterates the requirement to make a determination under paragraph 29(2)(k) in certain circumstances.

 

Item 101 inserts new section 165A at the end of Division 3 of Part 6-2 of the Act, setting out how to calculate each participating jurisdiction’s respective liability for providing redress to a person under the new funder of last resort arrangements.

 

Subsection 165A(1) sets out the effect of a participating jurisdiction being a funder of last resort where the Operator determines under paragraph 29(2)(j) that an institution is responsible for abuse of a person, and determines under paragraph 29(2)(k) that one or more participating jurisdictions are the funder of last resort for the institution in relation to the abuse.  In these circumstances, each of the jurisdictions are proportionally liable        for half of what the institution would have been liable to pay if it had been a participating institution.  The Commonwealth bears the other half of the liability.

 

Subsection 165A(2) provides for determining the amount of the redress payment.  It provides that when determining the amount of a redress payment under paragraph 29(2)(c) of the Act, the Operator must apply subsection 30(2) of the Act (which sets out the method statement for determining the amount of the redress payment and sharing of costs) as if each institution that the Operator determines under paragraph 29(2)(j) is responsible for the abuse, and for which the Operator determines under paragraph 29(2)(k) that a participating jurisdiction is a funder of last resort, were also a responsible institution in relation to the abuse.

 

Subsections 165A(3) to (5) are about working out a participating jurisdiction’s share of the redress payment for the purposes of subparagraph 29(2)(l)(i).  For the purposes of working out the participating jurisdiction’s share of the redress payment, subsections 165A(3) to (5) refer to the jurisdiction as the funding jurisdiction .  A legislative note at subsection 165A(3) directs the reader to subsections 165A(6) to (8) to work out the Commonwealth’s share of the redress payment.

 

Subsection 165A(4) provides that, to work out a funding jurisdiction’s share of the redress payment, for each institution, the Operator must first halve the amount worked out under subsection 30(2) as the amount of an institution’s share of the costs of the redress payment.  The Operator must then divide that half by the number of participating jurisdictions that are funders of last resort for the institution.  A legislative note at subsection 165A(4) provides that if there is only one funder of last resort, the amount worked out here will be the same as half the institution’s share of the costs of the redress payment).  A second legislative note provides that if there is more than one funder of last resort for the institution in relation to the abuse and one of those is the Commonwealth, then the Commonwealth is included in the number of funders of last resort among which to divide half of the institution’s share for the purposes of paragraph 165A(4)(b).  (Otherwise, subsections 165A(6) to (8) set out how to determine the Commonwealth’s share.)

 

Subsection 165A(5) states that the funding jurisdiction’s share of the costs of the redress payment is the sum of amounts worked out under subsection 165A(4) for each institution.

 

Subsections 165A(6) to (8) are about working out the Commonwealth’s share of the costs of the redress payment for the purposes of subparagraph 29(2)(l)(ii). 

 

Subsection 165A(7) provides that, to work out the Commonwealth’s share of the redress payment, for each institution, the Operator must first halve the amount worked out under subsection 30(2) as the amount of an institution’s share of the costs of the redress payment.  If the Operator determines that the Commonwealth is a funder of last resort for the institution in relation to the abuse, the Operator must then divide that half by the number of participating jurisdictions that are funders of last resort for the institution, and add half of the amount worked out under subsection 30(2) to the amount worked out by dividing the other half among the participating institutions that are funders of last resort.  A legislative note at subsection 165A(7) provides that if the Commonwealth is the only funder of last resort for an institution, then the Commonwealth’s share of the redress payment for that institution will be the whole of the amount worked out under subsection 30(2).



Subsection 165A(8) states that the Commonwealth’s share of the costs of the redress payment is the sum of amounts worked out under subsection 165A(7) for each institution.

 

Subsections 165A(9) to (11) are about working out a participating institution’s share of the counselling and psychological component of redress.  Subsections 165A(12) to (14) are about working out the Commonwealth’s share of the counselling and psychological component of redress.  These provisions use essentially the same formula as those in subsections 165A(3) to (5) (for funding jurisdictions) and subsections 165A(6) to (8) (for the Commonwealth) respectively, with an institution’s notional share of the counselling and psychological component of redress being worked out in accordance with section 31 of the Act, as if the institution were a participating institution.

 

Subsection 165A(15) is about working out a funding jurisdiction’s contribution to the costs of administration of the Scheme for a quarter (scheme administration costs).  For each institution for which the Operator determines under paragraph 29(2)(k) that a participating jurisdiction is the funder of last resort in relation to abuse, the Operator must determine the institution’s share of the scheme administration costs under subsection 152(2) as if the institution were a participating institution, halve that amount, divide that half by the number of participating jurisdictions determined to be funders of last resort for the institution in relation to the abuse, and add that amount to what would otherwise have been the funding jurisdiction’s contribution to those costs.

 

Items 102 and 103 insert the phrase ‘, State, Territory’ after the phrase ‘an institution’ in section 166 and 168 of the Act.

 

Item 104 inserts the phrase ‘, State, Territory’ after the phrase ‘the institution’ in paragraphs 168(a) and 168(b) of the Act.

 

Item 105 inserts ‘and participating jurisdictions’ at the end of the heading in section  172.

 

Item 106 inserts the phrase ‘or participating jurisdiction’ after the phrase ‘ participating institution’ in paragraph 172 (c) of the Act.

 

Item 107 inserts ‘or jurisdiction’ after the phrase ‘the institution’ in section 172 of the Act.

 

Schedule 2 - Disclosing information about non-participating institutions

 

Item 1 inserts a new section 95A to Division 2 of Part 4-3 of the Act, to authorise the Operator to disclose that an institution is not participating in the Scheme where the institution has been named in an application for redress, or the Operator has reasonable grounds to believe that the institution may be connected with  the abuse of a person within the scope of the scheme. 

 

Subsection 95A(1) provides explicit authority to the Operator to publicly disclose that a non-government institution is not a participating institution in circumstances where that institution has been named in an application for redress as being involved in the abuse of that person or where the Operator has reasonable grounds to believe that the institution may be connected with abuse of a person that is within the scope of the scheme, or both circumstances apply. Further, the Operator may only publicly disclose that a non-government institution is not a participating institution if that institution is not a participating institution or a partly-participating institution.

 

Subsection 95A(2) sets out the circumstances in which a non-participating institution may be named. The circumstances include where an application for redress under the scheme identifies the institution as being involved in abuse, that the Operator has reasonable grounds to believe that the institution may be connected with abuse, that the Operator has contacted the institution about participating in the scheme and the institution has not responded to the Operator despite having had a reasonable time to do so, that the institution has informed the Operator that the institution intends to agree to participate in the scheme, that the institution has informed the Operator that the institution does not intend to agree to participate in the scheme, that the institution has informed the Operator that the institution intends to agree to being listed under section 164B (partly-participating institutions), that the institution has informed the Operator that the institution does not intend to agree to being listed under section 164B (partly-participating institutions) and that there are not reasonable grounds for expecting that, if the institution were declared to be a participating institution under section 115, its liabilities under this Act would be discharged. Paragraph 95A(2)(i) provides that additional circumstances may be prescribed by the rules.

 

Subsection 95A(3) explicitly provides the Operator with the authority to disclose protected information under the section.

 

Subsection 95A(4) explicitly provides that the Operator must not disclose protected information that identifies a person who may have applied for redress under the scheme or in a circumstance where the Operator has reasonable grounds to believe that person may have been abused.

 

 

Schedule 3 - Application and transitional provisions

 

Division 2 - Application and transitional provisions

 

Item 1 inserts new Part 8-4 in the appropriate position in Chapter 8 of the Act, setting out the application and transitional provisions pertaining to the amendments.  Part 8-4 includes new sections 206, 207 and 208.

 

Section 206 sets out the definitions for amending Act , defined as the National Redress Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last Resort and Other Measures) Act 2021 , and application , defined as an application for redress.

 

Section 207 provides that the amendments made by Schedule 1 of the amending Act apply in relation to an application made on or after the commencement of section 207, or an application made before commencement, where it was not withdrawn before commencement, and the Operator has not made a determination on the application before commencement.

 

Section 208 specifies that, for the purposes of the amendments made by Schedule 2 of the amending Act, it does not matter whether the application was made before, on or after commencement.

 

 

 



Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE (FUNDERS OF LAST RESORT AND OTHER MEASURES) BILL 2021

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Bill

This Bill makes amendments to the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 to ensure the ongoing improvement of the National Redress Scheme for Institutional Child Sexual Abuse (the Scheme) and to enhance a survivor’s access to redress. The amendments are in response to the Final Report of the Second Year Review of the National Redress Scheme for Institutional Child Sexual Abuse (the Review), undertaken by Ms Robyn Kruk AO, and the Government’s commitment to ongoing improvement of the Scheme.

The amendments made by the Bill will:

·          Expand Funder of Last Resort (FOLR) arrangements to provide that governments can be a FOLR for :

o    defunct institutions that have no parent institution to take responsibility, and a state institution was not also responsible for the abuse; and

o    non-defunct institutions that are unable to participate in the Scheme as they are not able to meet their redress liabilities and obligations.

·          Provide explicit authorisation for the Scheme Operator to publicly name relevant institutions that have not joined the Scheme. 

Human rights implications

The Bill does not introduce any limitations on human rights, but rather positively engages several human rights conventions.

The Bill introduces a number of changes to the Scheme, which are survivor focussed. The Review undertook consultations with survivors and other stakeholders and the recommendations reflect these discussions.

This Bill engages the following rights:

·          Convention on the Rights of the Child (CRC)

o    article 39 - state supported recovery for child victims of neglect, exploitation and abuse

·          International Covenant on Civil and Political Right (ICCPR)

o    article 2(3) - right to an effective remedy

 

The Scheme currently provides an effective remedy to people and supports the recovery of people who have experienced institutional child sexual abuse by enabling recognition of past abuse and providing access to redress, including a redress payment, a direct personal response from the responsible institution and access to counselling and psychological care services. This Bill further promotes these rights by increasing survivor’s ability to access redress and outcomes under the Scheme.

Funders of Last Resort

The Bill expands the Funder of Last Resort arrangements to allow state and territory governments to be a Funder of Last Resort in a further two circumstances.  These circumstances are in addition to the existing Funder of Last Resort arrangements provided for the in the Act.    

Firstly, the Bill provides that a government can be a Funder of Last Resort for institutions that are named in applications to the Scheme that no longer exist, there is no overarching organisation to take responsibility for the institution, and a government had no involvement in the abuse.

Secondly, the Bill provides that a government can also be a Funder of Last Resort for an institution that is unable to meet the legislative requirements to participate in the Scheme.  An institution cannot participate in the Scheme unless there are reasonable ground to expect it can discharge its redress liabilities. 

Expanding Funder of Last Resort arrangements will ensure survivors naming these institutions in their applications have an avenue to access redress under the Scheme.  Given the nature of the institutions involved, these applicants may not be able to pursue civil litigation as an alternative to the Scheme.

Where an institution is still operating but is unable to join the Scheme, the Bill provides the option for the institution to partly participate in the Scheme.  Although unable to fund their redress liability, partly participating institutions can provide a Direct Personal Response; this could be in the form of an apology.  This recognises that many institutions want to do the right thing by survivors and do what they can to ensure a survivor can access all three parts of redress available through the Scheme.  

Expanding Funder of Last Resort arrangements is in response to recommendation 5.1 of the Review and is supported by states and territory governments.

The Commonwealth Government has agreed to a 50:50 cost-shared model with the states and territories for any redress paid under the expanded Funder of Last Resort categories. This demonstrates the Commonwealth Government’s commitment to increase access to redress for survivors of institutional child sexual abuse.

These arrangements will not expand FOLR arrangements to cover the costs of providing redress to survivors for institutions that can join the Scheme but choose not to.  Institutions that can join the Scheme but choose not to will continued to be encouraged to join the Scheme and take responsibility for past abuse, and will be subject to financial consequences should they not join.    

Public Naming Institutions that do not join the Scheme

Institutions named in applications to the Scheme that have not joined within a reasonable timeframe are publicly named on the Scheme’s website. Publicly naming institutions provides survivors who have applied for redress, and those considering applying for redress, with information on the institutions’ participation in the Scheme and is a lever to further encourage institutions to join the Scheme.

The Bill provides that institutions named in applications to the Scheme, or institutions the Scheme Operator has a reasonable belief has a connection with the abuse of the person, can be publicly named if they do not join. 

This measure does not change the existing naming practice. It provides a stronger and more administratively efficient basis to publicly name institutions, as well as making it clear to institutions that they will be publicly named should they be able to join the Scheme, but choose not to.

This measure will support increased institutional participation in the Scheme, which in turn will allow more survivors to access redress and help survivors make informed decisions. 

Conclusion

The Bill is compatible with human rights because it promotes the protection of human rights and does not introduce any limitations on human rights.

 

 

[Circulated by the authority of the Minister for Families and Social Services, Senator the Hon Anne Ruston]